Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin Toell and Mark Petre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 17, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Yolanda Deleon from the remaining causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s motion, which, relying only on the pleadings, had sought, pursuant to CPLR 603, to sever the first cause of action, seeking to recover upon a claim for services rendered to Yolanda Deleon, from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of five accidents and that multiple defenses had been interposed in the answer. By order entered August 17, 2016, the Civil Court denied defendant’s motion.

The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; City Chiropractic, P.C. v Auto One Ins. Co., 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; King’s Med. Supply Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Here, the conclusion that resolution of the claim for services rendered to Yolanda Deleon will involve different questions of fact and law from the claims for services rendered to the other assignors is not compelled by the fact that the assignors were injured in separate [*2]accidents or by defendant’s pleading of 55 affirmative defenses (see Majestic Acupuncture, P.C., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U]). To the extent that defendant cites Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. (65 Misc 3d 140[A], 2019 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) to support the opposite conclusion, it should not be relied upon for the proposition that severance is warranted solely on the ground that no-fault claims arose out of multiple car accidents on different dates. The record in Premier demonstrated that the denial of each claim was based on the particular assignor’s failure to appear for scheduled independent medical examinations and, while omitted from the decision, that fact was the basis for this court’s determination.

In view of the foregoing, defendant did not establish that the Civil Court’s denial of defendant’s motion was an improvident exercise of discretion. Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Decided on April 9, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Peter C. Merani, P.C. (Adam J. Waknine of counsel), for appellant-respondent. Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 22, 2018. The order, insofar as appealed from by defendant, granted plaintiff’s motion to renew its prior motion to recalculate interest awarded in a judgment entered August 10, 2007, and, upon renewal, ordered that the interest awarded in that judgment be calculated at 2% per month compounded. The order, insofar as cross-appealed from by plaintiff, sua sponte provided that postjudgment interest would accrue at 9% annually pursuant to CPLR 5004.

ORDERED that the cross-appeal by plaintiff is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on August 10, 2007 awarding statutory no-fault interest from August 18, 2000 at a simple rate (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have that interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff’s motion was denied on the ground that the court could not determine the relevant dates, and thus could not determine the appropriate rate of interest to apply.

Plaintiff moved pursuant to CPLR 2221 (e) for leave to renew its motion and, upon renewal, to have the no-fault interest awarded in the August 10, 2007 judgment recalculated at a [*2]compound rate. Plaintiff attached to its motion papers, among other things, claim forms showing that the treatments at issue had been rendered in May 2000. By order entered February 22, 2018, the Civil Court granted plaintiff’s motion, finding that plaintiff had now established the relevant dates and that plaintiff had a reasonable justification for its failure to submit the claim forms with its original motion, and ordered that the interest awarded in the judgment be calculated at a compound rate. In addition, the order sua sponte provided that postjudgment interest would accrue at 9% annually pursuant to CPLR 5004. Defendant appeals from so much of the order as granted plaintiff’s motion to renew and, upon renewal, ordered that the interest in the judgment be calculated at a compound rate, and plaintiff cross-appeals from so much of the order as, sua sponte, provided that postjudgment interest would accrue at 9% annually.

Plaintiff’s cross-appeal is dismissed, as the portion of the order which set forth a rate for postjudgment interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]), and we decline to grant leave to appeal.

Contrary to defendant’s argument, plaintiff established a reasonable justification for its failure to submit the claim forms in its original motion. Moreover, the record clearly demonstrates that the claims involved herein are all governed by the former regulations providing for compound interest (see Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff’s motion to renew was properly granted, and, upon renewal, the Civil Court properly ordered that the interest awarded in the judgment be calculated at 2% per month compounded.

Accordingly, the order, insofar as reviewed, is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

Decided on March 26, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Goldberg, Miller & Rubin (Eli Shmulik of counsel), for appellant. Law Office of Gabriel & Moroff, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated July 8, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

Plaintiff commenced this action in the District Court of Suffolk County on July 11, 2018 to recover assigned first-party no-fault benefits for services that had been provided to its assignor, who was allegedly injured in a motor vehicle accident on November 17, 2017. The complaint stated that the claim number was C067157NY17. Defendant served an answer and, thereafter, commenced a declaratory judgment action in the Supreme Court, New York County, against the present provider, among others, and the provider’s assignor. By order and judgment entered on December 10, 2019, the Supreme Court granted, on default, a motion by the insurer herein for a default judgment against, among others, the present provider and its assignor, and ordered, adjudged and declared that the insurer has no duty to pay any no-fault benefits to the provider and its assignor arising out of “the November 17, 2017 collision referenced in the complaint (also known as claim number C067157NY17).” Relying upon the Supreme Court’s order and judgment, defendant moved in the District Court for summary judgment dismissing the complaint. Plaintiff opposed, and, by order dated July 8, 2020, the District Court denied defendant’s motion.

Contrary to the determination of the District Court, plaintiff’s action is barred under the doctrine of res judicata, as the declaratory order and judgment of the Supreme Court is a [*2]conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins Co. v Facey, 272 AD2d 399 [2000]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the Supreme Court’s order and judgment, the District Court should have granted defendant’s motion, as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the order and judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

GARGUILO, J.P., EMERSON and VOUTSINAS, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court limited the issues for trial, in effect pursuant to CPLR 3212 (g), to whether plaintiff’s assignor failed to appear for the duly scheduled EUOs. More specifically, the court found, among other things, that “[a]lthough defendant ha[d] established that it mailed EUO scheduling letters to The Rybak [Law] Firm, PLLC and plaintiff’s assignor at the address stated on the NF-2, there is an issue of fact as to the assignor’s non-appearance for examinations under oath as defendant has not established that [the assignor] was represented by counsel.”

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a plaintiff’s assignor failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the assignor, that the assignor twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Contrary to the determination of the Civil Court, the affirmations of defendant’s counsel, as well as the transcripts of the EUOs, were sufficient to establish that plaintiff’s assignor had failed to appear for the EUOs. It is irrelevant whether plaintiff’s assignor was represented by counsel, as defendant was only required to mail the EUO scheduling letters to plaintiff’s assignor (see 11 NYCRR 65-3.5 [e]; 3.6 [b]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion or otherwise challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

Decided on March 5, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias of counsel), for appellant. Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered September 12, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Plaintiff, RX Warehouse Pharmacy, Inc. (RX Warehouse), commenced this action on February 17, 2015 to recover assigned first-party no-fault benefits for services rendered to plaintiff’s assignor, who had allegedly been injured in a motor vehicle accident on December 17, 2009. Defendant 21st Century Insurance Company (21st Century) moved for summary judgment dismissing the complaint on the ground that the issue of whether 21st Century was required to provide no-fault coverage for the claim in dispute had been decided in a Supreme Court, Nassau County, declaratory judgment action, by order entered August 23, 2012 granting 21st Century’s motion for the entry of a default judgment. RX Warehouse opposed the motion in the Civil Court and cross-moved for summary judgment. 21st Century, in further support of its motion in the Civil Court, proffered an order of the Supreme Court, entered May 6, 2015, which had granted 21st Century’s motion for summary judgment, and a judgment entered February 4, 2016 pursuant to the May 6, 2015 order, declaring, insofar as is relevant, that the insurance policy at issue was null and void with respect to the December 17, 2009 collision, and that 21st Century has no duty to defend or indemnify any person under the policy in any action or proceeding brought for damages as a result of the December 17, 2009 collision. RX Warehouse’s attorney argued in an affirmation that the judgment is not applicable to this provider, and that, in any [*2]event, the judgment had not been served on this provider.

By order entered September 12, 2016, the Civil Court denied 21st Century’s motion and granted RX Warehouse’s cross motion, finding that the Supreme Court’s August 23, 2012 order is not a conclusive final determination, as it did not make any declarations determining a lack of coverage. The Civil Court further found that the Supreme Court’s February 4, 2016 judgment had not been served on RX Warehouse’s counsel, and even if the Civil Court considered the judgment, the “judgment does not declare any rights or obligations that pertain to the plaintiff or plaintiff’s claims in this action.”

A defendant’s default admits all the factual allegations of the complaint and all reasonable inferences to be drawn therefrom (see Lamm v Stevenson, 276 AD2d 531 [2000]). Here, by defaulting in the declaratory judgment action, RX Warehouse admitted all the facts alleged in the complaint in that action regarding the staged nature of the accident in question. An order, such as the August 23, 2012 order granting 21st Century’s motion for the entry of a default judgment in the declaratory judgment action, “provides such a ‘judgment’ as will bar relitigation under the doctrines of res judicata or collateral estoppel so long as the requisites of identity of issue and opportunity to contest are present” (Vavolizza v Krieger, 33 NY2d 351, 356 [1974]; see also Slater v American Min. Spirits Co., 33 NY2d 443 [1974]).

Consequently, in light of the August 23, 2012 order, 21st Century’s motion in the Civil Court for summary judgment dismissing the complaint should have been granted under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of RX Warehouse in the present action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

Decided on February 19, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on February 19, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS